ARJAN SINGH KALRA vs RAJENDRA'S PROMOTORS And BUILDERS

MR. Arjan Singh Kalra, hereinafter referred to as the complainant, booked space in the basement of a building Complex called Rajendra Santoshi House at 3, Dilshad Garden, Delhi. The area booked was 123 sq. feet and the rate to be charged was Rs. 475/- per sq. foot. He paid Rs. 59,985 /- to the opposite party (O.P.) in lump sum. Instead of delivering the possession of the space booked the O.P. wrote to the complainant on 29th October, 1988 that for various reasons, stated in the letter, it was not possible to deliver the possession of the basement and if he wished, he could be allotted space on the ground floor on terms to be mutually settled. The complainant was thus compelled to agree to shift the booking to ground floor @ Rs. 900/- per sq. foot. The space to be provided was reduced to 66.65 sq. feet, in October, 1989. On 11.12.1989, the O.P. purported to deliver the possession of the space booked on the ground floor by the complainant. Case of the complainant is that, infact, actual possession was not delivered to the complainant. The building could not be occupied as there was neither electricity nor water nor it was occupied by any other allottee and it appeared that the building remained unoccupied because of some dispute between the O.P. and D.D.A. It was in these circumstances that the complainant wrote to the O.P., vide letter dated 13.11.1991 to refund the amount actually paid by him together with interest and compensation. The case was resisted by the O.P. The District Forum accepted the plea of the respondent that actual physical possession had been delivered to the complainant in accordance with the agreement between the parties and that there was no deficiency in service and accordingly the complaint was dismissed. Aggrieved by the order, the complainant has preferred this appeal.

WE have heard Mr. Vivek Sharma, Advocate for the appellant and Mr. P.K. Agarwal, Advocate, for the respondent and have carefully gone through the records. During me pendency of the appeal, we appointed Mr. S.C. Yadav, Advocate, as Local Commission to visit the building in question including the shop statedly delivered to the complainant and report particularly on the following points : (i) Whether electricity, water and sewerage connections are existing and operational in the said building or any parts thereof at the time of inspection? (ii) Whether any portion of the building is occupied; if so, by whom and since when as per information given by the occupant who is found at the time of inspection? (iii) Whether there are sign boards on various parts of the building; if so, broadly speaking what they are? (iv) Whether any telephones are working in any parts of the building so far as possible what are their telephone Nos. and at least a few of them? (v) Whether the building as a whole or any particular portion thereof has been sealed by die Authority such as DDA, MCD etc. ?"

Mr. Yadav accordingly executed the Commission and submitted his report dated 14.7.1997. Objection have been filed against his report by the Builder-respondent. No objections have been filed by the complainant-appellant. The facts reported by the Local Commissioner in his report in brief areas follows: (a) Inspection was carried out on 8.7.1997 in the presence of the complainant and authorised representative of the opposite party. (b) The Local Commissioner entered the building from the side of DESU Sub- Station which was the only way open. There was complete darkness in the basement as there was no electricity in the entire building. There was no water or sewerage connection. These were not in working order. None of the shops was open. Though some of the shops had a sign board painted on them. (c) He found no portion of the building in occupation of any person or being in use. On the second and third floors, there was only Halls and not smaller units. (d) He found no telephone connection in die entire building.

In the objections filed by the respondent, it was not disputed that no business was being transacted in any portion of the building. What was stated was that the O.P. could not be held responsible for allottees not carrying on their business in the various portions purchased by them. With regard to the electricity and water, it was stated that the two connections did exist and in support of this plea, copy of the security deposit receipt regarding electricity, order of the High Court dated October 29,1991 in C.W. 215/ 90 were produced. It was further stated that the electricity connection had been disconnected by DESU as the occupants failed to pay their bills. The absence of telephones was also sought to be explained on the ground that it was for the allottees to apply for and install the telephones and the builders could not be held liable for the same. Learned Counsel for the appellant explained that the electricity connection was only a temporary one taken by the builder during construction of the building and the High Court order was in connection with the said temporary connection. Such connections, it was pointed out were sanctioned during the construction and after the construction was completed, required connection were to be given including separate connections to various occupants of the building. No such regular connections were given. It was further pointed out that according to the admissions made in the objections, even the temporary connections stood disconnected as found by the Local Commissioner. It was also submitted that if water and electricity connection were existing, the respondent could easily produce any recent bill, which had not been done. After hearing the parties we find no substance in the objections filed by the respondent against the report of the Local Commissioner and we, therefore, accept the report.

THE report of the Local Commissioner goes a long way to prove the stand of the complainant that the building was never occupied by any of the allottees and the so-called delivery of possession remained only a paper transaction. It is difficult to believe that in a regular colony like Dilshad Garden, a multi-storey building should remain totally unoccupied in Delhi. THE reason must be some dispute between the builder and the D.D.A. THE facts relating to such a dispute must be in the knowledge of the O.P. but it has chosen not place the same before the District Forum or before us. The various photographs placed on record by the complainant/appellant also support the above conclusion. Confronted with these reasons, learned Counsel for the respondent invited our attention to the occupancy certificate dated 26.5.1988 obtained by O.P. from D.D.A. It was contended by the learned Counsel for the appellant that according to the description of the construction in the occupancy certificate two shops existed on the ground floor besides verandah, etc. In fact, the Local Commissioner had found 18 shops there. That, according to the learned Counsel appears to be the bone of contention between the builder and the D.D.A. We find force in the contention and we are not prepared to accept the explanation offered by Mr. P.K. Agarwal that, in fact, the ground floor consisted of only halls and after receipt of the Occupancy Certificate only partition walls had been raised which did not require any alternation in the Building Plan. We are satisfied that the respondent is not coming out with all the relevant facts which explained why none of the allottees is actually occupying the building.

FOR the aforesaid reasons, we hold that the writing dated 11.12.1989 under which the complainant purported to have received possession is a mere paper transaction. In fact, the possession was never delivered to the complainant. The appeal is accordingly allowed, order of the District FORum is set aside and the respondent directed to refund Rs. 59,985/- to the complainant-appellant alongwith 18% interest from the date of payment till date of refund alongwith costs which are quantified as Rs. 2,500/-. A copy of the order be furnished to the parties and also sent to District FORum-I. Appeal allowed. ________________